Law

Gorsuch's Rejection of a Politicized Executive Branch

When the Trump administration is challenged for crossing legal lines, how will the new justice vote?

The ninth vote.

Photographer: Justin Sullivan/Getty Images

As Justice Neil Gorsuch starts his first full term on the Supreme Court, many people are cheering what they see as his conservatism, and many others are mourning it. But an investigation of his opinions as an appeals court judge offers a more complicated picture about his beliefs and his approach to the law.

First, Gorsuch is fiercely protective of the independence of the judiciary -- and, in important respects, he is skeptical about executive power. Second, he is a bold thinker, willing to go in novel directions. Third, he is a fine writer.

Consider his views about the so-called Chevron doctrine, established by the Supreme Court in 1984, which says, in brief, that whenever executive agencies interpret ambiguous congressional enactments, courts must uphold their interpretations so long as they are reasonable. This was and remains a big deal in terms of the operation of modern government, because it grants considerable power to the executive branch and the president.

Right now, Chevron is the Trump administration’s best legal friend.

Suppose, for example, that Trump’s Department of Health and Human Services interprets the Affordable Care Act so as to narrow its scope. Or suppose that Trump’s Environmental Protection Agency decides that ambiguous provisions of the Clean Air Act do not include greenhouse gases. Or suppose that Trump’s Department of Homeland Security says the Homeland Security Act allows it to collect social-media information from immigrants. Under Chevron, courts are required to respect these interpretations unless they are unreasonable -- and it’s not easy for courts to reach that conclusion.

Since 1984, the Supreme Court has never questioned Chevron. Lower-court judges must obey their superiors, and it’s highly unusual for one of them to say that the justices got it flat wrong. But as recently as August 2016, Gorsuch did exactly that.

His central claim was that Chevron granted far too much power to the executive branch. In his view, Chevron is inconsistent with the independent role of the judiciary -- and its constitutional obligation to say what the law is. In his words, “to resolve cases and controversies over past events calls for neutral decisionmakers who will apply the law as it is, not as they wish it to be.”

In his most dramatic passage, Gorsuch wrote, “Transferring the job of saying what the law is from the judiciary to the executive unsurprisingly invites the very sort of due process (fair notice) and equal protection concerns the framers knew would arise if the political branches intruded on judicial functions.”

Gorsuch contended that courts must interpret the law on their own, and must not defer to the views of executive agencies or even the president. Chevron, he argued, “is a problem for the people whose liberties may now be impaired,” when “an avowedly politicized administrative agent seeking to pursue whatever policy whim may rule the day.”

Got that?

Gorsuch is concerned that a politicized executive branch, responding to the day’s political whim, might endanger people’s liberties. He is also troubled by the aggrandizement of power within the president’s branch. For that reason, he rejected a principle to which the Supreme Court has been committed for more than 30 years.

I do not mean to say that Gorsuch was right. After all, Chevron has always allowed courts to have the final word so long as the law is clear, and there is a strong argument that where the law is not clear, the executive branch should have room to maneuver, precisely because it is politically accountable and full of technical experts.

But for the coming years, the more important point is that Gorsuch is on record as thinking that “powerful and centralized authorities like today's administrative agencies” deserve “less deference from other branches.”

In 2016, of course, a Democratic president was in charge of those agencies, and in the past Republican-appointed judges have shown significantly more interest in controlling the executive branch when it is in Democratic hands. But Gorsuch’s lower-court opinions are not partisan; right or wrong, they do not display any kind of political favoritism.

That leaves an intriguing question: When people challenge Trump’s executive branch for having crossed legal lines, how will Gorsuch vote?

On the basis of what we know, my hunch is good news for the rule of law: No matter who appointed him, he won’t be especially deferential to “an avowedly politicized administrative agent seeking to pursue whatever policy whim may rule the day.”

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

    To contact the author of this story:
    Cass R Sunstein at csunstein1@bloomberg.net

    To contact the editor responsible for this story:
    Katy Roberts at kroberts29@bloomberg.net

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